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Neal v. Berryhill

United States District Court, D. Colorado

July 31, 2018

LOYD W. NEAL, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         Plaintiff, Loyd W. Neal, appeals from the Social Security Administration (“SSA”) Commissioner's final decision denying his application for disability insurance benefits (“DIB”), filed pursuant to Title II of the Social Security Act, 42 U.S.C. §§ 401-433. Jurisdiction is proper under 42 U.S.C. § 405(g). Oral argument would not materially assist me in the determination of this appeal.

         After consideration of the parties' briefs, as well as the administrative record, I AFFIRM the Commissioner's final order.

         I. Statement of the Case

         Plaintiff is a 38 year-old veteran of the United States Army. [Administrative Record (“AR”) 184, 199] He seeks judicial review of SSA's decision denying his application for DIB. Pl.'s Br., ECF No. 12 at 3. Plaintiff filed this application on November 30, 2012 alleging that his disability began on January 14, 2012. [AR 27]

         The application was initially denied on June 25, 2013. [AR 120] The Administrative Law Judge (“ALJ”) conducted an evidentiary hearing on November 13, 2013 and issued a written ruling on December 5, 2013. [AR 24-77] In that ruling, the ALJ denied Plaintiff's application on the basis that he was not disabled because, considering his age, education, and work experience, he had the residual functional capacity to perform jobs that exist in significant numbers in the national economy. [AR 37] The SSA Appeals Council subsequently denied Plaintiff's administrative request for review of the ALJ's determination, making SSA's denial final for the purpose of judicial review. [AR 728-30]; see 20 C.F.R. §404.981.

         Plaintiff timely filed his complaint with this court seeking review of SSA's final decision. On October 30, 2015, I reversed and remanded the case back to SSA. Neal v. Colvin, No. 14-CV-01855-LTB, 2015 WL 5607831 (D. Colo. Sept. 24, 2015) (unpublished); [AR 734-53] The basis of my decision was that the ALJ erred by: (1) insufficiently considering certain medical records; (2) insufficiently analyzing the Veteran's Administration's (“VA”) rating decision for Plaintiff; and (3) not giving due consideration to Plaintiff's credibility. [AR 740-53]

         On remand, the same ALJ held an evidentiary hearing on April 26, 2016, and issued a second written decision dated June 9, 2016. [AR 645-708] The ALJ again ruled that Plaintiff was not disabled because through his date last insured, Plaintiff was capable of performing work that existed in the national economy. [AR 665-66] Plaintiff again appealed, and the SSA Appeals Council upheld the ALJ's decision. [AR 629-34] Plaintiff timely filed the current Complaint with this court seeking review of the Commissioner's decision.

         II. Relevant Medical History

         The medical records begin with Plaintiff's therapy appointments with Clark Jennings, M.D. Plaintiff's interaction with Dr. Jennings continue throughout the record, and are summarized here. Dr. Jennings began seeing Plaintiff regarding his mental impairment beginning in 2008. [AR 623] The records of Dr. Jennings' appointments with Plaintiff begin on February 10, 2011. [AR 588] The records are relatively brief and regard Plaintiff's medication management. [Id.]

         Plaintiff was, in part, assessed with PTSD with sleep agitation and daytime focus problems. [Id.] Dr. Jennings noted that Plaintiff appeared well-groomed, was edgy or fatigued, had mild depression or tension, a coherent thought process and no psychotic symptoms, oriented cognition, and competent memory. [Id.] The record noted a follow-up in four weeks, but the next record is on November 11, 2011, as an “urgent appointment as recommended by the patient's therapist, Jackie Grimmett.” [AR 587]

         Plaintiff was assessed with “PTSD with a history of sleep agitation, cognitive impairment, or associated mood disorder with some degree of manic features.” [Id.] In his mental status evaluation, Dr. Jennings noted that Plaintiff appeared “dramatically dressed[, ] much better than when I last saw him” with “mild psychomotor activation, ” moderate to severe emotional liability, oriented cognition, competent memory, and racing thoughts and distractibility. [Id.]

         Dr. Jennings prescribed various medications, including the anticonvulsant Depakote, the antidepressant Prozac, the anticonvulsant and analgesic neurontin, the sedative and insomnia drug Ambien, the antipsychotic Abilify, the antianxiety medication Xanax, and the antidepressant trazadone. [AR 583-85]

         On February 16, 2012, Dr. Jennings noted that it was “increasingly obvious this individual suffers from rather severe chronic mental illness” and that Plaintiff exhibited “a rather chronic mild to moderate thought disorder with paranoid and religious trends.” [AR 585] Dr. Jennings noted mixed success with medications. [AR 580, 583-85]

         On November 7, 2012, Dr. Jennings' noted in Plaintiff's mental status evaluation that he was much better groomed with a “Native American” appearance, pleasant behavior, minimally anxious dysphoria affect, improved thought organization, no imminent dangerousness, oriented cognition, mild distractibility, and competent memory. [AR 580]

         On November 21, 2013 Dr. Jennings completed a mental impairment questionnaire where he diagnosed Plaintiff in part with bipolar I, PTSD, and insomnia disorder. [AR 623] In describing the clinical findings which justify his diagnosis of Plaintiff, Dr. Jennings noted “colorful Native American garb, ” moderate anxious affect with occasional flight of ideas, and cyclic manic symptomology. [Id.] On a list of mental abilities needed for unskilled or semiskilled work, Dr. Jennings mostly noted that Plaintiff would be unable to meet competitive standards. [AR 625-26] Dr. Jennings checked boxes that stated Plaintiff would be absent from work more than four days per month (the greatest option); that Plaintiff's impairment would last over twelve months; that Plaintiff was not malingering; and that Plaintiff's impairments were reasonably consistent with his symptoms and functional limitations. [AR 627]

         Additional records were added after SSA's initial denial. On April 8, 2014, Dr. Jennings wrote that Plaintiff “[i]ntermittenly struggles with mild depression, episodes of sleep instability, and episodes of irritability. In many ways patient feels like he is coping much more effectively.” [AR 888] The final record is from October 2014 when Plaintiff presented with acute grief due to the loss of his son. [AR 889] Dr. Jennings prescribed Kolopin instead of Xanax regarding Plaintiff's stress. [Id.]

         Concerning a prior SSA disability filing, on February 24, 2011, Dowin H. Boatwright, M.D. completed a consultative exam on Plaintiff. [AR 311] Plaintiff presented with complaints of: (1) a traumatic brain injury; (2) posttraumatic stress disorder (“PTSD”); (3) a left shoulder injury; and (4) temporomandibular joint disorder. [Id.] Dr. Boatwright noted that Plaintiff submitted no medical records for him to review. [AR 311]

         Dr. Boatwright explained that Plaintiff

was pleasant, cooperative, and in no acute distress. He appeared to sit comfortably during the exam and without pain-mitigating movements. He did not appear uncomfortable getting on and off the examination table, removing shoes, and arose spontaneously and unaided from a seated position without discernible discomfort. He appeared his stated age, was appropriately dressed and groomed, and remained appropriate throughout. He did not appear particularly anxious, agitated, or drowsy and responded appropriately with adequate effort throughout. He appeared to have no difficulty with hearing during our discussion and speech was clear and coherent.

[AR 312] Concerning the traumatic brain injury and PTSD diagnoses, Dr. Boatwright recommended that Plaintiff follow up with specialists. [AR 314]

         Dr. Boatwright provided a function assessment and wrote that “[t]here are no recommended limitations on the number of hours that the patient is able to sit, stand, or walk. There are no manipulative or environmental limitations recommended. Postural limitations include abducting greater than 130 degrees. The patient should be able to lift twenty pounds continuously, twenty five pounds frequently, [and] up to fifty pounds occasionally.” [Id.]

         Also on February 24, 2011, R. Terry Jones, M.D. examined Plaintiff. [AR 315] Dr. Jones reviewed Plaintiff's medical and psychiatric records and noted that Plaintiff presented with, in part, traumatic brain injury and PTSD. [Id.] Regarding symptoms of PTSD, Dr. Jones noted that Plaintiff had “nightmares and night terrors several times a week, some flashbacks during the day in terms of intrusive thoughts, hypervigilance, exaggerated startle response, increased irritability and ease of anger and avoidance of large crowds.” [AR 318] Dr. Jones noted in his conclusion that Plaintiff, while on a tour of duty in Iraq, suffered a number of traumatic events, resulting in PTSD. [AR 319]

         Dr. Jones added that Plaintiff “does have crying spells at least once a week, no suicidal ideation or history of suicide attempts, no significant anhedonia, but he does have some mild anergy.” [Id.] Plaintiff did not identify with feelings of helplessness, hopelessness or worthlessness, nor presented with symptoms of psychomotor retardation. [Id.] He also noted that Plaintiff was “managing his own money and paying his own bills and he appears to be capable of doing so based upon this evaluation.” [Id.]

         In November 2011, Plaintiff began to receive home care through the VA. [AR 488-89] Melody Hernandez, Plaintiff's partner, became the primary family caregiver. [Id.] Generally, the assistance needed related to mental difficulties in daily life, such as sleep management, planning and organizing, delusions, recent memory lapse, and self-regulation of moods. [AR 501-03]

         In August 2013, Jill Watson, M.D. completed a disabled person parking application for Plaintiff as “he [could not] walk 200 feet without rest and is limited overall in [his] ability to walk due to arthritis condition.” However, Dr. Watson added that Plaintiff also marked that he could not walk without support, such as a cane, but that he had walked into and out of the clinic without aid, so it did not apply. [AR 443]

         On January 14, 2013, Melissa A. Polo-Henston, PsyD performed a compensation and pension exam in regards to Plaintiff's application for VA benefits. [389-90] Dr. Polo-Henston reviewed Plaintiff's VA medical files and performed the analysis related to Plaintiff's PTD and traumatic brain injury. [AR 390]

         Dr. Polo-Henston noted in her claim review that Plaintiff was evaluated in 2009 “with anxiety, anger and depression, and increased alcohol use. He had a traumatic brain injury screen which was deemed to be negative on June 16, 2006. He was referred to behavioral health on June 6, 2008 and diagnosed with posttraumatic stress disorder.” [Id.] Dr. Polo-Henston added that in April 2010 Plaintiff had a traumatic brain injury evaluation (named the St. Louis University Mental Status Exam) and scored 26 out of a possible 30, indicating that his score was within normal limits. [Id.] In Dr. Polo-Henston's mental status exam, Plaintiff took the same test and received a score of 22 out of 30, “which is unusual to see in a younger person.” [AR 392]

         Dr. Polo-Henston noted that Plaintiff “appeared his stated age, had tattoos and Native American jewelry and symbols. He was casually dressed and neatly groomed. His affect was normal. His speech was normal rate, tone, and pressure. His eye contact is good. His thought process is linear and goal directed.” [Id.]

         Dr. Polo-Henston noted that Plaintiff did not make a good effort on various neuropsychological tests. [AR 393] In her assessment, Dr. Polo-Henston stated that Plaintiff still presented symptoms of PTSD, but they were successfully stabilized with medication and therapy. [AR 394] She added that Plaintiff was “able to work but requires a supportive environment where his mental health issues are understood.” [Id.] Dr. Polo-Henston did not find Plaintiff to have a traumatic brain injury, but did find that due to his PTSD, Plaintiff

is able to maintain activities of daily living including personal hygiene. He has not experienced significant trauma over the last year. There has not been worsening of his condition. There have not been remissions; symptoms are continuous. He does not have problems with drug and alcohol abuse at this time. There is not inappropriate behavior. He is in treatment and has responded. Medications are present and have been helpful. Thought process and communication are not impaired. Social functioning is impaired, as [Plaintiff] has difficulty with being stimulated in crowds. Employment is somewhat impacted due to psychological issues, as the Veteran has not worked since he discharged. He has attempted school several times. He has difficulty with crowds and gets overwhelmed easily and needs a supportive environment. The Veteran denies postmilitary stressors. Other than the diagnoses listed, no other mental conditions were found. The Veteran is competent to handle VA funds.


         On January 25, 2013 by referral from Mary Louise Langlois, M.D., radiologist Gregory R. Wein found no “fracture, dislocation or bone destruction” in Plaintiff's right knee, but ...

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